Wednesday, January 22, 2014

Plaintiff sued Carter’s for basically the usual California
claims in connection with Carter’s crib bumpers—“a strip of thin padding that
is intended to affix to the inside perimeter of an infant’s crib by means of
ties or other attachments to the slats that surround the crib. Crib bumpers are
sold either individually or as bedding sets.”The bumpers allegedly pose a significant risk of death or injury to
infants, but Carter’s allegedly concealed this and left the false impression
that they promote infant safety.

Carter’s does say on the label: “To prevent entanglement or
strangulation, position ties to the outside of crib and be sure they are
secure. Remove bumper when child can sit up unaided or can pull to a standing
position.” Also, it includes an
information sheet that counsels parents to remove “pillows, sheepskins,
pillow-like stuffed toys and products not intended as infant bedding from the
crib when infants are sleeping,’ [but] it does not recommend removing the crib
bumper when the baby is sleeping.” Instead, the sheet counsels avoiding “pillow-type”
bumpers, the use of bumpers with ties that exceed nine inches, and bumpers that
can’t be fastened securely. This allegedly conceals the serious risks posed
even by properly installed bumpers. (FWIW, the allegations of risk are consistent
with everything I read as an expecting parent ninish years ago.)

The complaint alleged that crib bumpers became popular with
old-style cribs that used widely set slats, which allowed a baby’s head to
become trapped between them. Current cribs correct this flaw, though the
complaint didn’t indicate how many old cribs remain.A number of professional and infant health
advocacy groups have advised against the use of crib bumpers, as has the FDA. The complaint didn’t allege a clear causal
connection between sudden infant death syndrome and crib bumpers, but did cite statements
suggesting that rebreathing stale air may be contributory to SIDS in some cases
and a 2007 study that attributed 27 accidental deaths of children between 1985
and 2005 to bumper pads.

The complaint didn’t allege any affirmative
misrepresentation. “Nondisclosure or concealment of a material fact that a
defendant was obliged to disclose can be actionable in four situations: (1)
when the defendant is in a fiduciary relationship with the plaintiff; (2) when
the defendant had exclusive knowledge of material facts not known to the
plaintiff; (3) when the defendant actively conceals a material fact from the
plaintiff; or (4) with the defendant makes a partial representation but also
suppresses some material fact.”

The court first held that Rule 9(b) required Corral to
identify with particularity the “fact” that Carter’s was obliged to
disclose.“[A] claim of fraud by
omission cannot, as a practical matter, require the same degree of adherence to
the ‘who what when and where’ standard imposed by Rule 9(b) on claims of
affirmative misrepresentation. However, for a claim of fraud by omission to
provide adequate notice to the defendant, there must be a fairly precise
statement of what was required to have been disclosed that was not.” Here,
Corral claimed that Carter’s was required to “disclose the significant risk
that their crib bumpers may cause death, entrapment, and/or suffocation,” even
if used as instructed.

The court wasn’t sure that was a “fact” within the meaning
of the CLRA.To establish that this was
a risk, Corral needed to allege “at least some evidence that the use of
Defendant’s product, as directed, increases the frequency with which the harm
will occur.”The evidence that bumpers
caused accidental deaths didn’t specify the type/whether they were the same
design as Carter’s, or the contribution, if any, of faulty installation.The recommendation of safety groups wasn’t
itself proof of the alleged substantial increase in risk, but appeared to
result from a global assessment that included “the nonzero risk of injury, the
lack of any verifiable benefit from the use of crib bumpers and the possibility
the product will be installed or used improperly leading to injury.” While
Corral’s allegations might establish a number of “facts,” the alleged omission
(that Carter’s bumpers are inherently dangerous) wasn’t one of them.Corral needed a more direct line to infant
harm.

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